Expect a decade of fights

Analysis Efforts to pass a range of amendments that would have strengthened net neutrality legislation failed on Tuesday in the European Parliament, leading to the question: what now for Europe?

First up: the reality. All the proposed amendments failed with a significant majority against them. It was roughly 440 against 240 for each time, splitting clearly along party lines (social democrats and Christian democrats in favor).

That means the rules will now go forward to be turned into regulations within nine months that will then be applied across Europe by the Body of European Regulators for Electronic Communications (BEREC), as well as national regulators and the courts.

In large part, critics were concerned about the overly broad language that they feel ISPs will use to introduce premium services. It will be down to the regulators to decide how to interpret that language.

The amendments hoped to shut off any possible avenues for "fast lanes" or a "two tier" internet, and they failed. Now we will have to see what telcos try to do with the language they have, and how hard the regulators and courts come down on them for possible violations.

Weren't the amendments a no-brainer? How come they failed with such large majorities?

There are three main reasons why the amendments didn't pass:

Expediency: The rules have been tied up in negotiations for several years. The changes made by the European Council of Ministers were a behind-the-scenes deal cooked up with the Parliament to make progress. Unless Parliamentarians felt particularly passionate about the issue, they were going to pass it so that the issue can move forward. That's what politicians get paid to do.

Roaming charges: The voting wasn't just over net neutrality – it was bundled with the big issue of data roaming. Under the rules, Europeans will soon be charged the same amount when making calls and using data on their phones wherever they are in Europe. This is obviously a big deal for millions of consumers and a huge win for European politicians. They were desperate to get this law on the books – and it has been years in the making. In comparison to the clear impact of no more rip-off roaming charge, the net neutrality wording is much more about what-ifs and maybe's. If politicians had voted for the net neutrality amendments, it would have caused an inevitable delay in the roaming rules and opened them up to accusations of dragging their feet.

Lobbying and power politics: The telcos are a very powerful lobbying force in Europe. In the United States, that old power was successful overwhelmed by the new kids on the block: Google, Facebook, Twitter, Amazon, and others. They organized, lobbied extremely hard – for example warning the FCC that the attempt by the telcos to introduce their version of net neutrality rules were a "graver threat to the internet" – and ultimately tipped the balance of power. In Europe, no such giants exist and the companies that did organize against the rules are either American or small. Moreover, the US net neutrality rules went through the regulator, the FCC, whereas the European rules went through the European Parliament and Council. If the US net neutrality had gone through Congress, the results would likely have been very different. It is no small coincidence that today a new lobbying group, The European Tech Alliance made up of "fast-growing tech companies that have been built in Europe" was launched today.

So, we have what we have: net neutrality rules with obvious holes that were introduced thanks to telco lobbying. As a result, it is fair to assume that telcos intend to use them.

Unhappy but not downcast

The Web Foundation, which fought for the amendments, was unhappy but not completely downbeat. The amendments would have "guaranteed net neutrality," it said in a statement, but "loopholes in the rules as passed now mean we could see the introduction of paid fast-lanes for Internet traffic." Note the word "could."

CEO of the Web Foundation Anne Jellema was a little stronger when she said that Europe had taken "a giant step away from its vision of becoming a world leader in the digital economy. These weak and unclear net neutrality regulations threaten innovation and free speech."

But, she noted, "All is not lost. The European Parliament is essentially tossing a hot potato to the Body of European Regulators, national regulators, and the courts, who will have to decide how these spectacularly unclear rules will be implemented."

Likewise, one of the MEPs who has championed the issue, Marietje Schaake, noted that it was a "missed opportunity." She put the blame squarely on the lobbying power of telcos: "Too much attention was given to the interests of national telecom companies and too little to those of internet users and the economy of the future. This has led to vague texts on net neutrality, which compromises the open internet."

Of most concern is the fact the "zero rating" was approved. This is where ISPs can select certain services to not be held against monthly data limits. This practice has been explicitly banned in the Netherlands and Slovenia, but those laws are now effectively over-ridden by the vote yesterday.

"Despite rhetoric to the contrary, this package poses a real threat to the principle of net neutrality," said Michel Reimon. The approval "introduces the possibility of 'traffic management' by service providers and 'specialised services,' which would de facto undermine net neutrality and lead to a two-tier internet, with those who pay more getting more privileged access."

But will it? The answer is: possibly.

There is no doubt that there is a financial incentive for ISPs and telcos to make the most of the loose language, and that means that some kind of creative exploitation is inevitable. The big question is what happens when that occurs.

It seems inevitable that lawsuits and consumer complaints are coming down the pipeline and it will be in the hands of the regulators and courts to decide how to handle the issues. It is likely to be a long and difficult battle. Campaigners will be annoyed today that they will have to fight it at all. But there is little doubt that they will. ®